Inter-American Commission on Human Rights: Petition procedure

Applies to/Se aplica a

Summary

According to article 23 of the Rules of Procedure of the Inter-American Commission on Human Rights, “any person or group of persons or non-governmental entity legally recognized in one or more of the Member States of the OAS may submit petitions to the Commission, on their behalf or on behalf of third persons, concerning alleged violations of a human right recognized in, as the case may be, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights”.
A petition can only be lodged after domestic remedies have been exhausted, and has to be lodged within six months after the final judgment. In addition, the subject of the petition or communication should not be pending in another international settlement procedure.
For those member States of the OAS that have ratified the American Convention on Human Rights, this will be the legal reference for evaluating a petition. For those who did not, it will be the 1948 Declaration of the Rights and Duties of Man (the American Declaration). In addition, any additional Inter-American human rights protocol ratified by a State can form the basis of a petition.
After a petition has been declared admissible, the Inter-American Commission proceeds to analyse the alleged human rights violations in detail. It might also attempt to reach a “Friendly Settlement” between the parties concerned. If the Inter-American Commission finds a violation of rights protected under the relevant human rights treaty, it will issue a report on the merits, which will include recommendations to the State aimed at ending the human rights violations, making reparations, and/or making changes to the law.
If a State does not comply with the recommendations of the Inter-American Commission, the Commission may decide to publish the case or to refer it to the Inter-American Court of Human Rights, if it concerns a State party that has accepted the Court's jurisdiction.

1. Likely result from the use of this mechanism

Following receipt of a petition by the Inter-American Commission on Human Rights, the Inter-American Commission will first decide on the admissibility of the petition. If a petition is found admissible, the Inter-American Commission might try to negotiate a friendly settlement between the parties concerned, or – if this is unsuccessful or the parties do not want it – proceed to a decision on the merits of the case.
If the Inter-American Commission finds on a violation of rights protected under the relevant human rights treaty, it will issue a report on the merits, which will include recommendations to the State aimed at ending the human rights violations, making reparations, and/or making changes to the law. This report will be transmitted to the State concerned.
If the State does not comply with the recommendations of the Inter-American Commission within three months, the Commission will either refer the case to the Inter-American Court (if it concerns a State party that has accepted the Court's jurisdiction in accordance with article 62 of the American Convention), or publish a final report with final conclusions and recommendations.

Urgent action:

According to article 25 of the Rules of Procedure, “in serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case.”

2. To which States does this mechanism apply?

The mechanism applies to all member States of the Organization of American States (OAS), albeit with variations. While the Inter-American Commission on Human Rights will deal with petitions related to human rights violations from all member States of the OAS, the procedure and the legal framework depend on what Inter-American treaties a State is party to.
A list of member States of the OAS is available at http://www.oas.org/en/member_states/default.asp.

3. Who can submit information?

According to Article 44 of the American Convention on Human Rights, “any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party”.
There is no need for a lawyer, but it is possible to be represented by a lawyer.

4. When to submit information?

A petition can only be lodged after domestic remedies have been exhausted, and has to be lodged within six months after the final judgment. In addition, the subject of the petition or communication should not be pending in another international settlement procedure.

5. Special rules of procedure or advice for making a submission?

While the petition procedure of the Inter-American Commission is straightforward, and does not require legal representation, it is advisable to read the Commission's information brochure on the “Petition and Case system”, which also includes a form that can be helpful when submitting a case (see http://www.oas.org/es/cidh/docs/folleto/CIDHFolleto_eng.pdf).
A petition can be filed by any person, or group of persons, or by any NGO legally recognised in one or more member states of the OAS.

How to write a petition?

For a petition to be admissible, it needs to meet the following requirements:

It needs to include the name(s), nationality, and signature(s) of the person(s) filing the petition, or if it is submitted by an NGO, the name and signature of its legal representative;

whether the person filing the petition wishes his or her identity be withheld from the State concerned;

an address for receiving communication from the Inter-American Commission, if possible including telephone, fax, and email;

a detailed description of the alleged human rights violations, specifying date, place, and nature of the alleged violations;

if possible, the name(s) of the victim(s) and of the public authorities involved in the alleged human rights violations;

the State responsible for the alleged human rights violations;

any steps taken to exhaust domestic remedies;

an indication that the petition has not been submitted to another international settlement procedure.

In addition, the petition has to be filed within the time limit of six months after exhaustion of domestic remedies. If for some reason domestic remedies cannot be exhausted, because they are unreasonably prolonged or ineffective, then this should be stated in the petition.

Emergency procedures:

According to article 25 of the Rules of Procedure, “in serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case.”
A request for precautionary measures should be made when submitting a petition, or – should this become relevant after the petition has been submitted – when the need arises.

6. What happens to the submission (how long will it take)?

Upon receipt of a petition by the Secretariat of the Inter-American Commission on Human Rights, the Secretariat will be responsible for the initial processing of the petition, especially checking if it meets the requirements of article 28 of the Rules of Procedure. Should documentation be missing, the Secretariat will contact the person or NGO that submitted the petition and request additional information.
The Secretariat will also register the petition and acknowledge receipt.
Once all requirements are met, the petition will be forwarded to the Inter-American Commission. In serious or urgent cases, the Secretariat will notify the Inter-American Commission immediately.

During the admissibility procedure, the relevant parts of the petition will be forwarded to the State concerned for comments. If the person submitting the petition wants his or her identity be withheld, it will not be transmitted to the State. However, it is usually not possible for the identity of victims of alleged human rights violations to be withheld.

According to article 30 of the Rules of Procedure, the State should respond within two months of the transmission of the request by the Secretariat. This can be extended, but not beyond three months counted from the date of the initial request.

In serious or urgent cases, or when the life of personal integrity of the alleged victim is in real or imminent danger, the Inter-American Commission will request the promptest reply by the State.

Prior to a decision on the admissibility, the Inter-American Commission may request additional information from all parties concerned.

Prior to a regular session of the Inter-American Commission, a Working Group on Admissibility will meet and make recommendations as to the admissibility of petitions. A decision on admissibility will then be made by the Inter-American Commission. Any decision on admissibility or inadmissibility is public and will be included in the Annual Report of the Inter-American Commission. Reports on admissibility or inadmissibility can also be found at http://www.oas.org/en/iachr/decisions/cases_reports.asp.

Following a decision on admissibility, the Inter-American Commission will proceed to a decision on the merits of the case. First, the petitioners will be given two months to submit additional information to the Inter-American Commission. The relevant parts of these submissions will be transmitted to the State concerned, who will also be given two months to respond.

Prior to a decision on the merits of the case, the Inter-American Commission will then set a time period for the parties to express whether they are interested in initiating the friendly settlement procedure according to article 41 of the Rules of Procedure.

If it deems necessary, the Inter-American Commission may also convene a hearing with the parties. It may also carry out an on-site investigation (article 40 of the Rules of Procedure).

Finally, the Inter-American Commission will deliberate in private on the decision on the merits. If the Inter-American Commission does come to the conclusion that there was no violation of the relevant human rights treaty, the report will say so and will be published with the Annual Report of the Inter-American Commission.
If the Inter-American Commission finds a violation of human rights, it will prepare a preliminary report which includes recommendation to the State concerned, which will be submitted to the State in question with a deadline for reporting on the measures taken to comply with the recommendations. At that time, the report will not yet be published, and the State concerned is also not authorised to publish the report.
The petitioner will be notified of the report and that it has been transmitted to the State concerned.

If within three months after transmission of the preliminary report to the State concerned the matter has not been resolved, the Inter-American Commission may issue a final report which includes the opinion of the Commission and final conclusions and recommendations. The final report will again be transmitted to the parties concerned, with a deadline for submitting information as to the compliance with the recommendations.

After the expiration of the deadline, the Inter-American Commission will decide whether or not to publish the final report, and whether to include it in the Commission's Annual Report. Published final reports can be found at http://www.oas.org/en/iachr/decisions/merits.asp.

The above procedure applies to all member States of the Organization of American States, whether or not they have ratified the American Convention on Human Rights, and whether or not they have accepted the jurisdiction of the Inter-American Court. However, the legal reference might be different, depending on whether or not a State is party to the American Convention or not. This should be kept in mind when submitting a petition.

Inter-American Court of Human Rights

The following only applies to States Party to the American Convention on Human Rights that have accepted the jurisdiction of the Inter-American Court of Human Rights according to article 62 of the Convention.
Following the adoption of a preliminary report on the merits by the Inter-American Commission, the original petitioner will be notified about the decision, and will be given one month to present his or her position as to whether the case should be submitted to the Inter-American Court.

A case can be brought to the Inter-American Court either by the Inter-American Commission, or by the State concerned. The Rules and Procedure of the Inter-American Court are available at http://www.corteidh.or.cr/reglamento_eng.cfm. From the petitioner's point of view, it is likely that the case will be led by the Inter-American Commission.

7. History of the use of this mechanism

The Inter-American human rights system has been used in cases of conscientious objection to military service, but with a mixed outcome. The first case of a conscientious objector filed with the Inter-American Commission was the case of Colombian conscientious objector Luis Gabriel Caldas León in 1995. However, this case was finally archived in 2010, without a decision on the case (see http://www.cidh.org/annualrep/2010eng/COAR11596EN.doc).
In 1999, a group of Chilean conscientious objector filed a petition with the Inter-American Commission, alleging a violation of their right to freedom of thought, conscience and religion. In its opinion, the Inter-American Commission denied that a right to conscientious objection existed under the American Convention on Human Rights (see Report No 43/05). In 2004, a case was filed by the Ombudsman of Bolivia concerning a conscientious objector from Bolivia. This case ended in 2005 with a friendly settlement (see Report No 97/05).
Since the negative decision of 2005 in the case from Chile, the United Nations Human Rights Committee and the European Court of Human Rights have moved forward with the interpretation of the equivalent articles of the International Covenant on Civil and Political Rights and the European Convention on Human Rights respectively, so it is possible that the Inter-American Commission too could change its interpretation of the American Convention, if presented with a good case. However, we advise anyone wanting to engage in this to contact the authors of this publication.

So far, no case of conscientious objection to military service has been presented to the Inter-American Court of Human Rights.

Organization of American States: Rules of Procedure of the Inter-American Commission on Human Rights, Approved by the Commission at its 137th regular period of sessions, held from October 28 to November 13, 2009, and modified on September 2nd, 2011, http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp, accessed 15 October 2012

Legal Bases

Article 106 of the Charter of the Organization of American States establishes "an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters".

Article 12 of the American Convention protects freedom of thought, conscience, and religion:
“1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.
2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.
3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.“

According to article 62 of the American Convention, “a State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.
(...)
3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement.”

The case concerned Alfredo Díaz Bustos, a Jehovah's Witness and conscientious objector to military service. He alleged that his “right to conscientious objection has been violated by the State, directly affecting his freedom of conscience and religion, and that the State has failed to fulfill its obligation to respect and ensure the rights established in the American Convention, to which Bolivia is a party.”
The case concluded with a Friendly Settlement, in which the Bolivian State agreed:
“a) to give Alfredo Díaz Bustos his document of completed military service within thirty (30) working days after he submits all the required documentation to the Ministry of Defense;
b) to present the service document free of charge, without requiring for its delivery payment of the military tax stipulated in the National Defense Service Act, or the payment of any other amount for any reason or considerations of any other nature, whether monetary or not;
c) at the time of presentation of the service record, to issue a Ministerial Resolution stipulating that in the event of an armed conflict Alfredo Díaz Bustos, as a conscientious objector, shall not be sent to the battlefront nor called as an aide;
d) in accordance with international human rights law, to include the right to conscientious objection to military service in the preliminary draft of the amended regulations for military law currently under consideration by the Ministry of Defense and the armed forces;
e) together with the Deputy Ministry of Justice, to encourage congressional approval of military legislation that would include the right to conscientious objection to military service; (...)”

The case concerned three conscientious objectors from Chile, who alleged “that the obligation to perform military service constitutes a violation of the freedom of conscience of the young men Sahli, Basso, and Garate, as they have been subjected to restrictive measures that are an attack on their beliefs as to how they should carry out their life plans.”
(…)
“In those countries that do not provide for conscientious objector status in their law, the international human rights bodies find that there has been no violation of the right to freedom of thought, conscience or religion.“
(…)
“100. The Commission is of the view that the failure of the Chilean State to recognize “conscientious objector” status in its domestic law, and the failure to recognize Cristian Daniel Sahli Vera, Claudio Salvador Fabrizzio Basso Miranda and Javier Andres Garate Neidhardt as “conscientious objectors” to compulsory military service, does not constitute an interference with their right to freedom of conscience. The Commission is of the view that the American Convention does not prohibit obligatory military service and that Article 6(3)(b) of the Convention specifically contemplates military service in countries in which conscientious objectors are not recognized. Consequently, the Commission finds no violation by the Chilean State of Article 12 of the American Convention to the detriment of the petitioners in this case.”
(…)

The case concerned Guatemalan citizen Alejandro Piché Cuca, who on 27 April 1991 was recruited to the military by force.
“The facts denounced in the communication of January 22, 1992, concerning Mr. Alejandro Piché's forced recruitment into the army are serious violations of the Guatemalan Government's obligation to respect and guarantee the right to personal liberty (Article 7), the protection of human dignity (Article 11) and the right to freedom of movement (Article 22), guaranteed in the American Convention on Human Rights, in connection with Article 1.1 of that same legal instrument.”
(...)